Posts Tagged ‘optional character’

With its ruling of 19.01.2010, the European Court has taken an important decision for us German, which is still in many cases and laws of the current Möwenpick government play a role.

The starting point was the clear intention of the government, was involved in the SPD, the annulation of the dismissal of a social group of citizens, namely those of under 25-year-old workers. Something is clearly a discrimination against an ethnic group and is not in line with the social values of European and civilized concept of law.

Fortunately, the applicant was not spared this long journey of finding of law and our duty as German citizens Seda Kücükdeveci special thanks that she has zurückerkämpft for all of us a piece of legislation. (1)

„The verdict: (2)

Court:

European Court of Justice

Reference Number:

C-555/07

Type:

Case

Decision Date:

19/01/2010

Summary:

Lower courts:

Landesarbeitsgericht Dusseldorf,

Order for reference, 21.11.2007, 12 Sat 1311/07

JUDGMENT OF THE COURT (Grand Chamber)

19. January 2010 (*)

„Prohibition of discrimination on grounds of age – Directive 2000/78/EC – National employment protection legislation under the age of 25 before Year of life lying periods of employment of the employee in calculating the period of notice are not considered – a justification of the action – the policy conflict with national legislation – the role of the national court ‚

In Case C-555/07

REFERENCE for a preliminary ruling under Article 234 ECBrought by the National Labor Court Düsseldorf (Germany), by decision of 21 November 2007, received at the Court on 13 December 2007, in the proceedings

Seda Kücükdeveci

against

Swedex GmbH & Co. KG

adopt

THE COURT (Grand Chamber) ***

Case

1.

The reference concerns the Interpretation of the prohibition of discrimination on grounds of age, and Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, p. 16).

2.

This request was made in the context of a dispute between the woman and her former employer Kücükdeveci Swedex GmbH & Co. KG (hereinafter: Swedex) on the calculation of the notice.

Legal framework

Union law

3.

Directive 2000/78 was adopted on the basis of Article 13 EC. Recitals 1, 4 and 25 of this Directive are:

„(1) Under Article 6, paragraph 2 of the Treaty on European Union The European Union is founded on the principles of freedom, democracy, respect for human rights and fundamental freedoms and the rule of lawPrinciples which are all Member States. The Union shall respect fundamental rights as guaranteed by the [on 4 November 1950, signed in Rome to ensure] the European Convention on Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States as general principles of Community law.

…

(4) The right to equality before the law and protection from discrimination is a universal human right, this right is enshrined in the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights, the United Nations Covenants on Economic, Social and Cultural Rights and the European Convention on Human Rights and Fundamental Freedoms, signed by all Member States. The International Labor Organization Convention 111 prohibiting discrimination in employment and occupation.

…

(25) The prohibition of discrimination on grounds of age is a crucial element for achieving the objectives of the Employment Guidelines and encouraging diversity in the workforce dar. treatment on grounds of age may be justified under certain circumstances and therefore require specific provisions which depending on the situation of the Member States may vary. It is therefore essential to distinguish between differences in treatment, in particular by legitimate objectives in the field of employment policy, labor market and vocational training is justified, and discrimination which is prohibited. „

4.

The purpose of Directive 2000/78, according to Article 1 to establish a general framework for Combating discrimination on grounds of religion or belief, disability, age or sexual orientation in employment and occupation, with a view to implementing the principle of equal treatment across member states.

5.

Article 2 of that directive provides:

„(1) For the purposes of this Directive, the principle of equal treatment“ that there shall be no direct or indirect discrimination on any of those referred to in Article 1.

(2) For the purposes of paragraph 1

a) Direct discrimination exists when a person experiences on any of the grounds listed in Article 1 in a similar situation is treated less favorably than another is, has been or would be;

… „

6.

Article 3 paragraph 1 of the Directive provides:

„Under the powers conferred upon the Community, this Directive applies to all persons in public and private sectors, including public bodies, in relation to

…

c) employment and working conditions, including dismissals and pay;

… „

7.

Article 6, paragraph 1 of the Directive provides:

„Notwithstanding Article 2, paragraph 2, Member States may provide that discrimination on account of age shall not constitute discrimination if they are objectively and reasonably justified in the context of national law by a legitimate aim, including legitimate targets in the areas of employment policy, labor and professional Education should be understood, justified and the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

a) the setting of special conditions on access to employment and vocational training, employment and working conditions, including conditions of dismissal or pay in order to promote the professional integration of young people, older workers and persons with caring responsibilities or to ensure their protection;

b) the fixing of minimum conditions of age, professional experience or seniority for access to employment or to certain advantages linked to employment;

c) fixing a maximum age for recruitment because of the specific training requirements for the job or the need for a reasonable period of employment before retirement. „

8.

Directive 2000/78 was, according to Article 18, paragraph 1 to no later than 2 December 2003 to implement into national law. However, Article 18 of paragraph 2:

„In order to take account of particular conditions, Member States may, where necessary, an additional period of three years from 2 December 2003, a total of six years, take advantage of in order to implement the provisions of this Directive on age discrimination and disability. In this case, they shall inform the Commission thereof. … „

9.

The Federal Republic of Germany made use of this facility, so that the rules on age discrimination and disability in this State by 2 December 2006 had to be implemented.

National Law

The General Equal Treatment Act

10.

The § § 1, 2 p.m. to 10 p.m. the General Equal Treatment Act of 14 August 2006 (Federal Law Gazette I, p. 1897, hereinafter: AGG), with which the Directive has been implemented 2000/78, determine:

, § 1 Purpose of Act

The law aims to prevent discrimination on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity or eliminate.

§ 2 Scope

…

(4) For layoffs, the provisions apply only to general and special protection against dismissal.

…

§ 10 Permissible differential treatment on grounds of age

Notwithstanding the provisions of § 8, a difference in treatment is also permitted on grounds of age, if it is objectively and reasonably justified by a legitimate aim. The means of achieving this goal must be reasonable and necessary. Such differences of treatment may include, among others:

1. the setting of special conditions for access to employment and vocational training, employment and working conditions including remuneration and conditions for termination of employment, to promote the professional integration of young people, older workers and persons with caring responsibilities or to ensure their protection;

… “

The rules on the notice

11.

§ 622 of the Civil Code (BGB), provides:

„(1) can) The employment of a worker or an employee (the employee be terminated with a period of four weeks to the fifteenth or the end of a calendar month.

(2) For a termination by the employer’s notice if the employment in the establishment or undertaking

1. two years has passed, a month before the end of a calendar month,

2. passed five years, has two months to the end of a calendar month,

3. passed eight years, has three months to the end of a calendar month,

4. existed ten years, four months to the end of a calendar month,

5. passed twelve years, five months to the end of a calendar month,

6. Passed 15 years, has six months to the end of a calendar month,

7. Passed 20 years, has seven months to the end of a calendar month.

In calculating the period of employment that are before the age of 25 Year life of the employee are not taken into account. „

The main proceedings and questions referred

12.

Women Kücükdeveci was on 12 Born in February 1978. She had since 4 June 1996, perfect choice since she was 18 Age, employed by Swedex.

13.

By letter dated 19 December 2006 declared Swedex taking into account the statutory period, the termination of 31 January 2007. The employer, the notice period, calculated on the basis of employment for three years, even though the employee was employed for ten years with him.

14.

Women Kücükdeveci challenged the termination before the Labor Moenchengladbach. It claimed that under § 622 paragraph 2 subparagraph. 1 No. 4 BGB a four-month notice period from 31 December 2006 to 30 April 2007 should have been complied with. This period corresponds to a ten-year tenure. In this case are thus confronted by two private individuals, namely the one hand and women Kücükdeveci Swedex other.

15.

According to Ms Kücükdeveci § 622 provides the second subparagraph of paragraph 2. 2 Civil Code, when such rules before the age of 25 Year of life lies in the calculation of periods of service of notice disregarded a contrary to the Union law constitutes discrimination on grounds of age, so he must be disapplied.

16.

The country’s Labor Court Düsseldorf as an appellate court has determined that the implementation date for Directive 2000/78 was the time of termination must already expired. It has further stated that § 622 BGB contains direct discrimination on grounds of age, was not of its unconstitutionality is convinced of the compatibility with EU law is doubtful. In that respect, whether the issue of direct discrimination on the basis of primary law of the Union, as the verdict of 22 November 2005, Swiss chard (C-144/04, ECR 2005, suggest I-9981), seem, or would be determined by reference to Directive 2000/78. As the provision clearly and with a directive interpretation was not available, this raised the question whether the national court to disapply it can in disputes between private individuals to contribute towards ensuring the protection of confidence Normunterworfenen had an obligation to the Court for a preliminary ruling before to consult so that through him the incompatibility of the requirement to confirm the Union’s law.

17.

The country’s Labor Court Düsseldorf has decided to submit to the Court the following questions to the Court:

1. a) Is a national legislative scheme under which the employer to extend the period of notice to be observed with increasing duration of employment in stages, but here before the age of 25 Year of life lying periods of employment of the employee disregarded against the EU ban on age discrimination, particularly against primary Community law, or against the Directive 2000/78?

b) If the justification that the employer has to comply with the termination of younger workers, only a basic notice, to be seen in the fact that the employer is allowed a – impaired by longer periods of notice – operating interest in personnel management flexibility and not the younger workers (through Longer periods of older workers-mediated) inventory and disposition of protection is granted, for example because they are expected in relation to their age and / or lower social, family and personal commitments greater professional and personal flexibility and mobility?

2. If the question in the affirmative to 1a and 1b, the question is answered:

If the court of a Member in a dispute between private individuals, the Community disapply conflicting laws explicitly permit scheme, or is the trust that the Normunterworfenen in the application of existing national laws, then take into account the effect that the existence of a decision until after Unanwendbarkeitsfolge the Court regarding the incriminating or a substantially similar arrangements occur?

The questions

The first question

18.

By its first question the national court asks whether national legislation such as that of the case, according to the age of 25 Year of life lying periods of employment of the employee in calculating the period of notice will not be accepted, constitutes by Union law, particularly by primary or Directive 2000/78 which prohibited discrimination on grounds of age. It asks specifically whether such legislation is justified by the fact that younger workers to comply with the dismissal notice is only one reason to grant flexibility of personnel management on the one hand the employers who will not be possible with longer notice periods, and, secondly, because younger workers should be a higher personal and professional mobility as expected of older workers.

19.

To answer this question, it must first be, as well as stimulating the national court to determine whether it is considered in the light of primary law of the Union or the light of Directive 2000/78.

20.

It must be pointed out that the Council of the European Union – adopted based on Article 13 EC – Directive 2000/78, which has decided, as the Court, not even the principle of equal treatment in employment and occupation, which has its origin in various international instruments and the common constitutional traditions of Member States has steps down, but will provide only a general framework to combat various forms of discrimination in these areas, including on grounds of age, (see Mangold, paragraph 74)..

12.

The Court has recognized in this context that there is a prohibition on discrimination on grounds of age, which must be regarded as a general principle of Union law (see Mangold, paragraph 75).. Directive 2000/78 specifies that principle (see, by analogy, of 8 April 1976, Defrenne 43/75, ECR 1976, 455, paragraph 54)..

22.

In addition, reference should be to Article 6, paragraph 1 TEU, which provides that the Charter of Fundamental Rights of the European Union and the contracts the same legal value. According to Article 21, Section 1 of the Charter „prohibits discrimination in particular because of … age“.

23.

The prohibition on age discrimination applies in a case such as the main proceedings, but only if it falls within the scope of Union law.

24.

Unlike in the case in which the sentence of 23 Is September 2008, Bartsch (C-427/06, ECR 2008, I-7245), given that it is on the national question based on the scheme, allegedly discriminatory conduct in the main proceedings after the expiry of the Member State concerned to implement the deadline set Directive 2000/78, for the Federal Republic of Germany on 2 Ended December 2006, arrived.

25.

At this time, this policy has meant that the issue in the main proceedings, which recognizes an area covered by the directive, namely the dismissal falls within the scope of Union law.

26.

A national provision such as § 622 paragraph 2 subparagraph. 2 BGB, namely, affected by the fact that they are determined that before the age of 25 Year of life past employment of the employee in calculating the period of notice disregarded the terms of the dismissal of workers. With such a scheme are, therefore, provisions are made about dismissals.

27.

It follows that the question of whether the Union law precludes national legislation such as the issue in this case must be examined on the basis of any discrimination based on age prohibited general principle of Union law, as it is fleshed out in Directive 2000/78, to.

28.

Secondly, as regards the question of whether the procedures in the main scheme in question contains an unequal treatment on grounds of age, it means, according to article 2 paragraph 1 of Directive 2000/78 principle of equal treatment under the directive that there is no direct or indirect discrimination because of the requirements to enter into Article 1 of Directive reasons. Art 2 § 2a of the Directive makes it clear that direct discrimination within the meaning of Section 1, when a person experiences for those referred to in Article 1 of Directive grounds in a comparable situation in a less favorable treatment experiences than another is, has been or would be (see October 16, 2007, Palacios de la Villa, C-411/05, ECR 2007, I-8531, para. 50, and of 5 March 2009 , Age Concern England, C-388/07, not yet published in the ECR, paragraph 33)..

29.

In this case, § 622 paragraph 2 subparagraph. 2 BGB, a less favorable treatment to employees prior to their employment with the employer before the age of 25 Was added year of life. This national scheme and thus treats people who have the same seniority, different, depending on the age at which they entered into the business.

30.

If two workers with both 20 years of service, applies to the one that occurred with 18 years in operation, a notice period of five months, while for the others, who entered with 25 years, a period of seven months . In addition, a disadvantage the national question in the main proceedings, as the Advocate General observes in point 36 of his Opinion, generally younger workers against older workers, since the former, as the case demonstrates the applicant of the case, despite several years of seniority from the benefit of the gradual Extension of notice in accordance with the increasing of employment can be excluded, it is performed while older workers with comparable tenure.

31.

The national legislation at issue, therefore entails unequal treatment based on the criterion of age.

32.

Third, it is necessary to examine whether that difference can be a discrimination that is prohibited by the concretized with Directive 2000/78 prohibiting discrimination on grounds of age.

33.

Under Article 6, paragraph 1 subparagraph. 1 of Directive 2000/78 represents a different treatment because of age shall not constitute discrimination, if it is objectively and reasonably be understood in the context of national law by a legitimate aim, including legitimate targets in the areas of employment policy, labor and training, justified and the means of achieving that aim are appropriate and necessary.

34.

According to the national court and the presentation by the German Government at the hearing, § 622 BGB goes back to a law of 1926. The determination of the threshold of 25 years in this law is the result of a compromise between the then Government, which had wanted a uniform extension of the notice period for workers over 40 years to three months, the proponents of a gradual extension of that period for all workers and supporters a gradual extension of the notice period without consideration of employment; purpose of this rule is to exempt employers from the burden of the longer notice periods, in part, namely in employees under age 25.

35.

The national court that § 622 reflects the second subparagraph of paragraph 2. 2 BGB, the assessment of the legislature reflects that younger workers regularly fall more easily and quickly succeed in responding to the loss of their jobs and that greater flexibility could be expected of them. Finally, shorter notice periods for younger workers whose attitude facilitated by increasing the flexibility of personnel management.

36.

Objectives as set out by the German government and the national court to include employment and labor within the meaning of Article 6, paragraph 1 of Directive 2000/78.

37.

Under this provision, however, further examine whether to achieve such a legitimate aim are ‚appropriate and necessary‘.

38.

It must be pointed out that Member States have wide discretion in their choice of measures to achieve their objectives in terms of labor and social policies have (see Mangold, para. 63, and Palacios de la Villa, paragraph 68)..

39.

The national court states that the objective of the national question in the main proceedings consists in giving employers greater flexibility in personnel management, as his load was reduced in connection with the dismissal of younger workers, where greater professional and personal mobility can be expected .

40.

This scheme is however not in order to achieve this objective, an appropriate measure because it applies to all workers before the age of 25 Year of life have occurred in the operation, regardless of how old they are at the time of their dismissal.

41.

As for the legislature to the enactment of national issue in this case relates to rules and pursued by the German government cited to reinforce the protection of workers according to length of service that would delay the extension of the notice period in accordance with the employee’s service under the scheme for a worker who, before age 25 Year of life has occurred in the operation, even if the person has on his release for a long tenure. This scheme can not therefore be maintained to achieve the goal be considered suitable.

42.

Furthermore, the national legislation at issue before it touches, as the national court points out, young workers unequally because they take those young people who start early with no or only brief training work activities, but not those who after long training later in the Profession . enter

43.

Accordingly, the answer to the first question is that the Union law, in particular the prohibition of discrimination on grounds of age, in his specification by Directive 2000/78, is to be interpreted as precluding legislation such as the issue in this case, after the prior age 25 Year of life will be lying periods of employment of the employee in calculating the period of notice is not included.

The second question

44.

By its second question the national court asks whether, in a dispute between private parties to have a national scheme, which it considers incompatible with EU law, to disapply, after earlier to ensure the protection of legitimate expectations of the Court Normunterworfenen Article 267 TFEU must call to let him through the incompatibility of the requirement to confirm the Union’s law.

45.

First, as regards the role of the national court which must rule on a dispute between private parties, in which it appears that the relevant national legislation contrary to EU law, the Court held that it is up to national courts to ensure the legal, which results for individuals from the unionsrechtlichen provisions and ensure their full effect (see, to that effect from 5 October 2004, Pfeiffer and Others, C-397/01 and C-403/01, ECR 2004, I -8835, para. 111, and 15 April 2008, Impact, C-268/06, ECR 2008, I-2483, paragraph 42)..

46.

To litigation between private parties, the Court has consistently ruled that a directive can not of itself impose obligations on an individual, allowing him not to be relied upon as such is not possible (see, inter alia, 26 February 1986, Marshall , 152/84, ECR 1986, 723, para. 48, 14 July 1994, Faccini Dori, C-91/92, 1994 ECR I-3325, para. 20, and Pfeiffer and Others, paragraph 108). .

47.

However, the responsibility arising from a directive requiring Member States to achieve the result envisaged by the directive and their duty to take all appropriate measures to fulfill this obligation, whether general or particular, to all the authorities of the Member States and thus in their jurisdiction, the courts (see, to that effect, inter alia, 10 April 1984, Colson and Kamann 14/83, 1984 ECR 1891, para. 26, 13 November 1990, Marleasing C-106/89 ECR 1990, I-4135, para. 8, Faccini Dori, paragraph. 26, 18 December 1997, Inter-Environnement Wallonie, C-129/96, ECR 1997 I-7411, para. 40, Pfeiffer Others, para. 110, and published on 23 April 2009, Angelidaki Others, C-378/07 and C-380/07, not yet in the ECR, para. 106).

48.

Consequently, a national court which has interpreted the application of national law, that law and its interpretation based as far as possible the wording and purpose of this Directive, in order to achieve the result sought and thus comply with Article 288 para 3 TFEU (see, to that effect by Colson and Kamann paragraph. 26; Marleasing paragraph. 8, Faccini Dori, paragraph. 26, and Pfeiffer and Others, para. 113). The imperative for unionsrechtskonformen interpretation of national law is inherent in the system of the Treaty, since the national court is possible because, within its competence to ensure the full effectiveness of Union law, if it decides the case before it (see, to that effect Pfeiffer and Others, paragraph 114)..

49.

According to the national court is § 622 paragraph 2 subparagraph. 2 BGB, but not because of its clarity and precision of interpretation of Directive 2000/78 compliant accessible.

50.

Regard, it is firstly important to note that the principle of equal treatment in employment and occupation, as in para. Running 20 above, in Directive 2000/78 is not anchored, but there is only concrete, and, secondly, that the prohibition of age discrimination is a general principle of Union law, as it represents a specific application of the general principle of equal treatment (see, to that effect, chard, paras. 74 to 76).

51.

It is the responsibility of the national court, where litigation is on the prohibition of discrimination on grounds of age, in his specification by the Directive 2000/78 is pending, as part of its responsibilities to ensure the legal protection that results for the individual from the Union’s right to and ensure the full effectiveness of Union law by banning this necessary refusing any conflicting provision of national legislation (see, to that effect, Mangold, para. 77).

52.

Second, as regards the question of the obligation of the national court in a dispute between private parties the Court for a preliminary ruling on the interpretation of Union law to consult before a national provision which it considers unionsrechtswidrig may disapply, it is clear from the decision that this aspect of the question lies in the fact that the national court should be under national law, a provision of this law applicable only disapplied if that provision has been previously declared unconstitutional by the Constitutional Court.

53.

The need to ensure the full effectiveness of the prohibition of discrimination on grounds of age, in his specification by Directive 2000/78, means that the national court, a national falling within the scope of Union law provision, which it considers incompatible with this prohibition and The unionsrechtskonformen an interpretation is not accessible to disapply must leave without it being obliged to prevent or earlier to ask the Court for a preliminary ruling.

54.

The request for the national court with Article 267 para 2 of the TFEU opportunity given to the Court of Justice to give preliminary rulings for an interpretation before it unionsrechtswidrige the national provision which may conflict, however, can not, therefore, run into an obligation, because the national law, it This court is not permitted to allow a national provision which it considers to be unconstitutional, not to apply if they have not been previously declared unconstitutional by the Constitutional Court. For according to the principle of primacy of Union law, the belongs also to the prohibition of discrimination on grounds of age, is a unionsrechtswidrige national legislation falls within the scope of Union law, to disapply (see, to that effect, chard, para. 77) .

55.

It follows that the national court in a dispute between private parties is not required, but is entitled to ask the Court for a preliminary ruling on the interpretation of the prohibition of discrimination on grounds of age, in his specification by Directive 2000/78, before a determination of national law which it considers incompatible with this prohibition disapplied leaves. The optional nature of these applications to the Court is independent of the conditions under which the national courts under national law, a national provision which it considers to be unconstitutional, must disregard.

56.

Accordingly, the answer to the second question is that it is for the national court to ensure in a dispute between individuals, compliance with the prohibition of discrimination on grounds of age, in his specification by Directive 2000/78, by any contrary provision of the necessary national laws which may conflict, regardless of whether it makes use of its power to consult in cases of Article 267 para 2 of the TFEU the Court for a preliminary ruling on the interpretation of this ban.

Cost

57.

For the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. The costs incurred for the parties to submit statements before the Court are not recoverable.

For these reasons, the Court (Grand Chamber) hereby rules:

1. Union law, in particular the prohibition of discrimination on grounds of age, in his specification by Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, is to be interpreted as precluding legislation such as the issue in this case, prior to the age of 25 Year of life will be lying periods of employment of the employee in calculating the period of notice is not included.

2. It is for the national court to ensure in a dispute between individuals, compliance with the prohibition of discrimination on grounds of age, in his specification by Directive 2000/78 and, if necessary by conflicting provisions of national law which may conflict, regardless of whether it of its power makes use shall, in cases under Article 267 para 2 of the TFEU the EU Court of Justice to give preliminary rulings for an interpretation of this ban.

Signatures

* Language: German.

This verdict shows once again how strong partner, we Germans in the struggle for democracy and rule of law against a group of interests and Giermentalität dominated government and certain Möckenpick Merkel / Westerwelle.